Georgia lacks adequate checks and balances

The outgoing United States Ambassador to Georgia, John Bass, a few days ago addressed the American Atlantic Council, a Washington based think-tank, during which he took a wide angle look at Georgian politics. It was a thoughtful reflection by a diplomat at the end of an intensive three year period as his country’s main representative in Tbilisi, and it covered many important points. Although the speech was largely sympathetic to the Georgian government, Bass did raise sensitively a number of important shortcomings.

Surprisingly however his speech failed to address what many consider to be the root cause of many of the current political problems in Georgia – the absence of adequate checks and balances. When President Saakashvili became leader of Georgia in 2003, in rather dramatic circumstances, he made it clear that he was a man in a hurry and with an ambitious agenda, and that he did not want obstacles in his way. There have in fact been few obstacles because the president and his party have held sway over Georgian politics for the last nine years. The situation became even more acute once the other two protagonists of the Rose revolution were no longer there. Zhurab Zwania untimely death in 2005, and Nino Burjanadze’s marginalisation, and eventual despatch to political oblivion, removed even the internal checks and balances that the triumvirate created after the Rose revolution had provided.

The Georgian Parliament is overwhelmingly dominated by PresidentSaakashvili’s United National Movement who hold more than two thirds ofthe seats. The composition of the parliament is as follows: UNM 119; UnitedOpposition17, Labor Party 6, Republican Party 2, Christian Democrats 6.

The Georgian Parliament since 2004 has been overwhelmingly dominated by Saakashvili’s United National Movement. Controversial legislation is often rushed through parliament with very little consideration.

The major concern has been the Georgian judiciary, which has been tame to the point where it will not even challenge the government on simple criminal or civil cases, let alone on sensitive political ones. The independence of the judiciary is raised as an issue in many governance and human rights reports about Georgia.

On 14 June 2012, two leading Georgian NGOs have issued two reports that are highly critical of the situation around the justice system in Georgia. The Georgian Young Lawyers Association (GYLA) and Transparency International Georgia (TI-G) presented their reports based on observation of court cases in Tbilisi and Batumi over a six month period. According to the Chair of GYLA, Tamar Chugoshvili, there are clear indications that the courts make politically-motivated decisions and are not impartial while hearing cases. She believes that there is “too loyal an attitude towards prosecutors and a dependence of judges on them”.

The Chair of Transparency International Georgia, Nina Khatiskatsi, said that their observation had found that in 92.6% of all trials the judges ruled in favour of the prosecution or of Government interests. TI-G says that it monitored 252 hearings connected with 108 cases. On the positive side, it noted that, except for a few cases, the right to a public hearing was not violated in Batumi and Tbilisi City Courts. The adversarial principle was observed in the vast majority of cases – the disputing parties had the opportunity to provide their arguments, to plead, to examine evidence, to question witnesses, and to conduct all relevant procedural actions stipulated by legislation.

The GYLA report focused on Criminal cases. GYLA found that in the majority of proceedings it monitored, the court met its obligation to provide a public trial. The notable exception to this was first appearances, where the court failed in its obligation by never providing advanced notification to the public regarding the time and place of proceedings. While GYLA found that in most main trials the court observed the adversarial principle by allowing the parties to ask witnesses questions without undue judicial interference, there were examples where the court forgot its neutral role and took too active a role in witness examination.

GYLA found that judges could do a better job explaining essential rights to defendants at all stages of the proceedings, especially when it comes to the right to complain about ill-treatment at the hands of the authorities and the right to recuse the judge. Many judges also need to speak more loudly and clearly during proceedings to ensure that all those attending, both the parties and the public, fully understand what is happening in the courtroom. While monitoring indicated that the court was, for the most part, providing a courtroom environment that provided the appearance of equality between parties, the monitoring of decisions provided disturbing evidence that the courts heavily favour the prosecution. This was especially evident in the monitoring of first appearances. In every single case GYLA monitored, the court did exactly what the prosecution asked when it came to the imposition of preventative measures.

In every case where the prosecution asked for pre-trial detention, the court ordered pre-trial detention. In every case where the prosecution asked for bail, the court ordered bail. The court rarely provided sufficient rationale for imposing pre-trial detention. In bail cases, the court always imposed the exact amount of bail requested by the prosecution, never anything less. Moreover, in making these bail decisions, the court made little or no effort to determine the defendant’s financial status or to justify the bail figure it ordered. It is especially troubling to note that in none of the 101 first appearances GYLA monitored was the accused released on his or her own recognizance; all defendants – even those charged with only minor crimes – were given detention or bail. This fact provides strong support for those who claim that judges are not acting according to their individual assessments regarding the need for preventative measures, but instead are rigidly adhering to the so-called “zero-tolerance policy” of the government.

The court’s preference shown to the prosecution continued into the other phases of the criminal trial process. GYLA observed that in pre-trial motion hearings the court always granted the prosecution’s motion to admit evidence, but only granted the defence motion when the prosecution agreed to it. Perhaps most importantly, in all cases where the court delivered a final decision on the merits, it found the defendant guilty.

Seasoned observers of the Georgian political landscape say that the country’s political system lacks real checks and balances, and that everything that happens in Georgia needs therefore to be read from this prism.